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Google, Microsoft Press Lawsuits for Right to Release More Surveillance Data

Perennial competitors in the search realm, Google and Microsoft have set down their swords to press the U.S. government in court for the right to publish statistics on secret surveillance demands against their customers, the companies said today.

In June, the two internet giants separately petitioned a federal court for permission to release the number of national security requests they get from the government for customer data. The U.S. repeatedly stalled in responding in court, asking for six extensions in two months.

Then yesterday the Obama administration announced on its own that it would begin releasing limited statistics itself: specifically the total number of national security requests it issued for customer data in the past 12 months. It will then release the same information every year going forward.

But Microsoft and Google say that doesn't go nearly far enough. The companies will press their legal action seeking the right to release more statistics, including a breakdown of the number of requests specifically targeting user content, versus requests seeking metadata like the sender and recipient on e-mail. And they will not consent to more delays.

"[W]e believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email," Brad Smith, Microsoft's general counsel wrote today on the company's blog. "These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address.

"We believe it’s possible to publish these figures in a manner that avoids putting security at risk. And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete."

Microsoft acknowledged the unusual partnership with its competitor.

"To followers of technology issues, there are many days when Microsoft and Google stand apart," Smith wrote. "But today our two companies stand together. We both remain concerned with the Government’s continued unwillingness to permit us to publish sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders."

Both companies began seeking permission to publish surveillance data after Edward Snowden's revelation of a secret NSA program called PRISM that accesses information from Google, Microsoft and other internet giants.

Google said at the time that it wanted to address public concerns that Google might be providing unfettered access to user data or giving the government information in bulk.

“[G]overnment nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation,” Google’s Chief Legal Officer David Drummond wrote in a letter to the attorney general and FBI.

“We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope,” he continued. “Google’s numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.”

For the first time this year Google began publishing information about the National Security Letters it receives each year after negotiating with the government for permission to disclose them. The NSL figures Google provides are broadstroke numbers in the form of a range, such as 0-999 requests, for the number of court-authorized requests it gets as well as a similar broad range for the number of user accounts affected by the requests.

The company wants to do something similar for FISA requests, which Google and other recipients of such requests are barred from discussing.

Microsoft's Smith indicated today that while the government had been petitioning the court for extensions to respond to the requests, they had been conducting negotiations on the side with the government to come to an agreement. Those negotiations failed, Smith wrote.

"We hoped that these discussions would lead to an agreement acceptable to all," he wrote. "While we appreciate the good faith and earnest efforts by the capable Government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure. With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely. And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way."